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TexLaw
TexLaw, Attorney
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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In Small Claims Court in Clayton County Iowa. The Clerk at

Resolved Question:

In Small Claims Court in Clayton County Iowa. The Clerk at the Court house said if there is a claim filed by someone. Then for whatever reason nothing else is done or the case sits 90 days, they just dismiss the case and close it. Where would it say if that is with or without prejudice when the case is dismissed automatically?
Submitted: 2 years ago.
Category: Legal
Expert:  TexLaw replied 2 years ago.
Hi,

Thank you for your question. The clerk is referring to a procedure known as a "Dismissal for Want of Prosecution."

Such dismissals are generally without prejudice, unless the dismissal specifically states that it is with prejudice. In other words, look at the document dismissing the case and see if there is any language stating that the dismissal is with prejudice. If there was no document, then you can assume that the dismissal was without prejudice and the case can be refiled.

Please let me know if you need further information. Please also remember to rate my service positively so that I might be paid by the website for my work.

Best Regards,
ZDN
Customer: replied 2 years ago.

So your saying if it is not specified with prejudice, it is presumed without prejudice. That scares me, I just had two charges dismissed by the state and they just say Dismissed. That means they can recharge me from what your saying. Is that correct? And my first question wasn't answered. where would I find that is what they mean by Dismissed?

Expert:  TexLaw replied 2 years ago.
If they are charges by the State against you that were dismissed for want of prosecution, then it is technically true that the state may refile the charges against you (if it is not past the statute of limitation).

Again, if the document dismissing the cases states only that the charges where dismissed, then there has been no statement that it is dismissed with prejudice and the charges may be brought again by the state. The order dismissing the case must state "with prejudice" if it is to bar another charge by the state. So, the answer to your first question is that you must look at the order to see if it has the language "with prejudice."

Generally, where the state has a case dismissed for want of prosecution, it will not refile the case.

Please let me know if you have further questions.
ZDN
Customer: replied 2 years ago.

Well I have been told by a different expert, on JA. And also my step-father, city attorney, when it just reads dismissed. This is presumed with prejudice unless stated without prejudice. This is where I am confused. I need to plead my case that it means with prejudice. Score 2-with 1-without. After reading the iowa rules of civil procedure, I am going to have to disagree with you. Unless you can show me something to prove otherwise.

Expert:  TexLaw replied 2 years ago.
If you are being sued for a civil claim by the state, then the dismissal is without prejudice. If it is a criminal complaint, then it is with prejudice for misdeamenors but not aggravated misdeamenors or felonies.

Iowa Rule of Civil Procedure 1.944 clearly states that a dismissal for want of prosecution is without prejudice:

"1.944(2) All cases at law or in equity where the petition has been filed more than one year prior
to July 15 of any year shall be tried prior to January 1 of the next succeeding year. The clerk shall
prior to August 15 of each year give notice to counsel of record as provided in rule 1.442 of the
docket number, the names of parties, counsel appearing, and date of filing petition. The notice shall
state that such case will be subject to dismissal if not tried prior to January 1 of the next succeeding
year pursuant to this rule. All such cases shall be assigned and tried or dismissed without prejudice
at plaintiff’s costs unless satisfactory reasons for want of prosecution or grounds for continuance be
shown by application and ruling thereon after notice and not ex parte"

In your case you are talking about the state having a claim against you. If it is a civil claim and the case has been dismissed for want of prosecution, then it is without prejudice as stated above.

However, if the State is bringing a criminal complaint against you, then the dismissal for want of prosecution falls under the Iowa Rules of Criminal Procedure, which clearly state that such a dismissal is a bar to further prosecution as follows:

"2.33(1) Dismissal generally; effect. The court, upon its own motion or the application of the
prosecuting attorney, in the furtherance of justice, may order the dismissal of any pending criminal
prosecution, the reasons therefor being stated in the order and entered of record, and no such
prosecution shall be discontinued or abandoned in any other manner. Such a dismissal is a bar to
another prosecution for the same offense if it is a simple or serious misdemeanor; but it is not a bar
if the offense charged be a felony or an aggravated misdemeanor."

I hope this clears the issue up for you.

Best Regards,
ZDN
Customer: replied 2 years ago.

This is a civil case. They filed in small claims against me in Nov 2005. In Jan 2007 the case was dismissed. Now they have refiled the same thing against me again.

Expert:  TexLaw replied 2 years ago.
Then you have your answer, if it was a civil case that was dismissed in 2007 for want of prosecution under Rule 1.944(2), it is dismissed without prejudice. That is why the State has refiled the case.

Is there any other question I can answer on this issue?

If not, please remember to rate my services so that I might be paid by the website.

Good Luck,
ZDN
Customer: replied 2 years ago.

What is Ray v. Merle Hay Mall Inc? I took that as the case was just dismissed like on Dec 31 1993. But the plaintiff filed a motion to continue in Dec 94, within a year of the dismissal. Had It gone over the one yr the case was done. I just don't see how the plaintiff can keep having you served paper for small claims, let it dismiss, file, let it dismiss and so on. This is a bank taking me back to small claims since last time in 05, dismissed in 07, but the clerk said they close after 90 days. why they didn't dismiss mine after 90 days, but wait two yrs. And why wouldn't an Iowa Attorney know this? And he is City Attorney, if he doesn't know, maybe the magistrate doesn't either. Anytime you have a few Attorneys, one saying black, and the other saying white, I am gonna be gray. Like rule 1.271(4)b As to a class not cerified, permit dismissal without prejudice. I take that as a dismissal is with prejudice, the court has to permit a dismissal without prejudice.

Expert:  TexLaw replied 2 years ago.
Ray v. Merle Hay states that the court has the authority to dismiss a case for want of prosecution even though the parties have agreed to a trial date. It does not help you.

A rule regarding class certification (1.271(4)b) does not have anything to do with your issue here.

I'm not certain how to be any clearer than I've already been. A dismissal without prejudice does not mean that you have proved your defense or beat the other side. Iowa rules require that a case be tried within a certain time frame or it is dismissed without prejudice. That means the plaintiff has the right to refile the case.

I've cited the actual rule in my answer above. You can read for yourself to see what it states. In a civil suit when the court dismisses for want of prosecution, then it is "dismissed without prejudice".

I've also reviewed the other answers from the JA experts you've been working with. PaulMJD specifically tells you that if the case was dismissed without prejudice, they can refile the case, but they have to serve you with notice. My answer is not in conflict with his answer. In fact we are telling you the same thing.

From what I understand about your situation is that there is a garnishment being levied against your bank accounts based on a judgment that the bank got in a case against you that you believed was dismissed. Your research of the case file shows that the case was dismissed for want of prosecution. Apparently, the bank then refiled the case and obtained a default judgment against you. It is this default judgment on which the bank is basing its current garnishment.

Am I correct in understanding that you are trying to find a way to end the garnishment?

-ZDN

TexLaw, Attorney
Category: Legal
Satisfied Customers: 4270
Experience: Lead trial/International commercial attorney licensed 11 yrs
TexLaw and 18 other Legal Specialists are ready to help you
Customer: replied 2 years ago.

Of coarse.

Expert:  TexLaw replied 2 years ago.
You need to find the petition/complaint which was filed by the bank for the judgement they got to see whether there was fraudulent service. The petition/complaint had to be served on you (a summons) for the judgment to be valid. You need to see how the bank claims the lawsuit was served on you.

If it turns out that the lawsuit was never served on you or that the bank filed something fraudulently with the court, you should then file a Motion to Vacate Judgment based on these facts and ask that the court terminate the garnishment order.
Customer: replied 2 years ago.

I am not sure what you mean. I got served papers back in July that they were taking me to small claims court. I replied that I deny the claim. As far as I knew this was dimissed in 2007. So I never thought anymore about it. The next thing I know is my checking account has a zero balance. I never got anything saying I was being garnished. My bank didn't even call me to tell me the sheriff was there to take the money. I was out of town at the time they took the money. Now I have found a Notice of Garnishment that the sheriff served my bank. It says that a Garnishment was issued based on a Judgement against you and the Garnishment was served on Dirk Fishback who has answered that he is indebted to you. They also served my bank a Notice of Garnishment and Interrogatories. Then in the return of service the sheriff says he served my bank and left copies of the notice of garnishment with the employer for delivery to the judgement debtor. But I don't have an employer so don't know what that means unless he is calling my bank my employer. The only thing that was served on me was the papers that they were taking me to court and I could answer that I agree or disagree that I owe this money back in june. I denied I owed it. I thought this had been dismissed in 07.

Expert:  TexLaw replied 2 years ago.
I see. Apparently sometime between July and now, they went to trial on the case. You should have received notice of the trial. I'm worried that since you weren't paying attention and thought the case would be dismissed that the notice came in the mail and you simply did not see it. Is that a possibility?
Customer: replied 2 years ago.

Yes it is very possible, I am in court for something else at the time and get alot of mail form the clerk of court and my attorney in that case. So court dates are being continued and changing. So this is very possible. And besides that case, I have another Small Claims case going on in Clinton County. So it is very possible I missed it.

Expert:  TexLaw replied 2 years ago.
The only way to tell is to find the case file and determine if the notice was ever sent. The notice would likely be from the court or from the other party, notifying you that there was a hearing date. If you missed it because you didn't see the notice in the mail, then you lose out on your argument that your due process rights have been violated and the judgment should be reversed. If the notice was never sent and you were never notified, then you should file the motion to vacate the judgment because of the violation of your due process rights.
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4270
Experience: Lead trial/International commercial attorney licensed 11 yrs
TexLaw and 18 other Legal Specialists are ready to help you

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